(PC) Krenitsky v. Kirsch ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLAN DAVID KRENITSKY, No. 2:18-cv-0690 WBS DB P 12 Plaintiff, 13 v. ORDER 14 A. KIRSCH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff alleges defendants were deliberately indifferent to his serious medical needs, 19 resulting in the loss of his left eye, in violation of the Eighth Amendment. Before the court is 20 plaintiff’s second motion for the appointment of counsel. For the reasons set forth below, this 21 court grants the motion. 22 BACKGROUND 23 This case is proceeding on plaintiff’s complaint filed March 29, 2018. (ECF No. 1.) 24 Plaintiff seeks relief from three defendants: (1) Dr. A. Kirsch; (2) Dr. J. Jackson; and (3) 25 Registered Nurse M. Martinez. Plaintiff contends that as a result of an eye injury during a fall, he 26 suffered pain and vision loss. He submitted a sick call form and was first seen by defendant Martinez, 27 who failed to treat his problem with any urgency. He then saw defendant Jackson, his primary care 28 physician, and defendant Kirsch, an optometrist. Both doctors failed to treat his eye or refer him to an 1 ophthalmologist. As a result, plaintiff’s eye infection went untreated and he lost his eye. Also as a 2 result, plaintiff suffers from migraines. Plaintiff seeks compensatory and punitive damages and an 3 injunction requiring defendants to provide surgery to repair his deformed eyelid, other eye treatment, 4 and treatment for his headaches. 5 On screening, this court found plaintiff stated cognizable Eighth Amendment claims for 6 relief against all defendants for deliberate indifference to plaintiff’s serious medical needs. 7 After defendants filed an answer, plaintiff moved for the appointment of counsel. (ECF 8 No. 22.) This court granted that motion (ECF No. 30) and on November 18, 2018 this court 9 appointed counsel for plaintiff (ECF No. 31). The parties conducted discovery and litigated 10 discovery issues during 2019 and 2020. In early 2021, plaintiff sought to terminate the 11 appointment of counsel. On July 9, 2021, this court granted plaintiff’s request. (ECF No. 83.) 12 In early 2021, the court was made aware that plaintiff was married during the course of 13 these proceedings and might no longer qualify to proceed in forma pauperis. Plaintiff filed a 14 renewed motion to proceed in forma pauperis, which the court granted. (ECF Nos. 68, 69, 83.) 15 Plaintiff has now filed a second motion for the appointment of counsel. (ECF No. 94.) This court 16 finds a response from defendants unnecessary to consider the motion. 17 LEGAL STANDARDS 18 The United States Supreme Court has ruled that district courts lack authority to require 19 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 20 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 21 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 24 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 25 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 26 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 27 common to most prisoners, such as lack of legal education and limited law library access, do not 28 //// 1 establish exceptional circumstances that would warrant a request for voluntary assistance of 2 counsel. 3 ANALYSIS 4 In his second motion for the appointment of counsel, plaintiff argues that: (1) the factors 5 relevant to his first motion have not changed; (2) prior counsel provided him discovery on 6 computer disks, which plaintiff cannot access; and (3) absent resolution of this case through 7 settlement, it is likely to go to trial. (ECF No. 94.) 8 When it granted plaintiff’s prior motion to appoint counsel, this court found plaintiff met 9 the standards set out in Wilborn. (ECF No. 30.) Specifically, this court found that if plaintiff can 10 prove that defendants ignored his description of his symptoms and that the lack of treatment caused 11 his eye loss, he could succeed on his claim of deliberate indifference. This court further found 12 plaintiff was likely to be unable to litigate a case of this complexity because his vision was rapidly 13 declining and because he contended that he did not have regular assistance conducting research and 14 preparing legal documents. 15 A couple factors cause this court some hesitation in granting plaintiff’s renewed motion. 16 First, plaintiff showed competence in litigating his motion to terminate prior counsel’s appointment 17 and in his renewed motion to proceed in forma pauperis. Plaintiff’s filings have been thorough and 18 well-reasoned. Plaintiff does not contend that he had assistance from anyone in preparing those 19 filings. Second, plaintiff should be able to have the prison print the discovery documents from the 20 computer disks provided him by prior counsel. If the prison is unwilling or unable to do so, this court 21 could order it or find an alternate method to have the documents printed. 22 Nevertheless, this court finds, on balance, that the strength of plaintiff’s case, its complexity, 23 and plaintiff’s declining vision merit granting plaintiff’s motion. Plaintiff is again advised that this 24 order granting his motion is not a guarantee he will get counsel. The court must locate counsel 25 willing and able to accept appointment to his case without pay. The court will make every effort 26 to find such counsel. 27 Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows: 28 1. Plaintiff’s second motion for the appointment of counsel (ECF No. 84) is granted. 1 2. This action is referred to the court’s Alternative Dispute Resolution and Pro Bono 2 Program Director Sujean Park to locate an attorney who is admitted to practice in this 3 Court and is willing to accept the appointment. 4 | Dated: August 25, 2021 5 6 7 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 | DLBo ig DB prisoner inbox/civil rights/S/kren0690.31(2) 19 20 21 22 23 24 25 26 27 28